September 2, 2014announced the three-judge panel that will hear same-sex marriage cases from Idaho, Nevada, and Hawaii. All three judges were appointed by Democratic presidents and are considered to be some of the most liberal appeals court judges in the country.
Judge Stephen Reinhardt, nominated by President Carter, is a highly respected liberal judge, known for writing the opinion in the Prop 8 case when it came before the Ninth Circuit; Judge Reinhardt also wrote the opinion in SmithKline Beecham v. Abbott Labs, which held that a heightened level of judicial scrutiny is required for laws that discriminate based on sexual orientation, and that jurors can’t be discriminated against on that basis.
Judge Marsha Berzon, nominated by President Clinton, once clerked for Justice William Brennan, and is considered to be a solidly liberal judge. She joined Judge Reinhardt’s opinion in SmithKline as well.
The third judge on the panel is Judge Ronald Gould, also nominated by President Clinton. Judge Gould wrote the Ninth Circuit’s opinion in Witt v. Dept. of Air Force, challenging Major Margaret Witt’s discharge from the military on the basis of her sexual orientation under Don’t Ask, Don’t Tell. That decision held that heightened scrutiny is required under the Supreme Court’s decision in Lawrence v. Texas, and it led to an eventual ruling that Witt’s discharge was unconstitutional.
The appeals court’s decisions in SmithKline and Witt had already ensured a more difficult path to victory in the cases for the state officials and groups defending the same-sex marriage bans. This panel makes it even less likely, though not impossible, the bans would be upheld.
Arguments in the three cases will take place on September 8, and they will be live-streamed.
The cases are Sevcik v. Sandoval, from Nevada, Latta v. Otter, from Idaho, and Jackson v. Abercrombie, from Hawaii.